Daud vs State of Haryana

Mahavir Singh Chauhan, J.—Having been convicted and sentenced to rigorous imprisonment for a period of five years with a fine amounting to Rs. 500/- and in default of payment of fine, to further rigorous imprisonment for a period of six months u/s 363 of the Indian Penal Code, 1860 (for short, ''IPC''); rigorous imprisonment for a period of seven years with a fine amounting to Rs. 1,000/- and in default of payment of fine, to further rigorous imprisonment for a period of six months u/s 366, IPC; and rigorous imprisonment for a period of seven years with a fine amounting to Rs. 1,000/- and in default of payment of fine to further rigorous imprisonment for a period of six months u/s 376, IPC, vide judgment dated 03.12.2003/order dated 05.12.2003, passed by the learned Additional Sessions Judge (Fast Track Court), Karnal (for short, ''trial Court''), convict-Daud has brought this appeal to challenge the correctness of findings of conviction.

As per case of the prosecution, the prosecutrix, aged about 15-16 years, was called at about 11:00/12:00 in the noon on 25.12.2002 by the appellant from her house on the pretext that she was called by her mother, Gaphuri, who had gone to the fields to fetch fodder. However, said Gaphuri, on her return from the fields, informed her husband Hakam Ali (PW5) that she did not call the prosecutrix. Thereupon, Hakam Ali (PW5), accompanied by other members of the family and relatives, searched for the prosecutrix but without success and, ultimately, on 04.01.2003, made a statement (Exhibit PE) before the Investigating Officer, ASI Jagdish Chander (PW12), whereupon, a formal First Information Report (Exhibit PG) was recorded. The matter was investigated into. Statements of the witnesses were recorded. During investigation, the prosecutrix was spotted near Bus Stand, Panipat, on 06.01.2003, and on 07.01.2003, was taken to a Magistrate before whom she made a statement (Exhibit PL) u/s 164 of the Criminal Procedure Code, 1973 (for short, ''Cr.P.C.''), inter alia, to the effect that the appellant, after calling her from house on the pretext that she was called by her mother, took her to a tube-well room belonging to Harun Chaudhary and subjected her to rape there under the threat of being killed by showing a knife. Thereafter, he took her to bus stand of village Barsat, through fields, made her to board a bus under the threat of the knife, took her to Panipat and kept her in a room there, where she was again subjected to sexual intercourse against her wish and consent. She also stated before the Magistrate that whenever the appellant would leave the room, he would bolt it from outside. However, she somehow was able to come out of the room and had reached Panipat. Prosecutrix was medico-legally examined by Dr. Archana Soni (PW3). Accused was arrested and was medico-legally examined by Dr. R.S. Bhoria (PW11). On conclusion of investigation, appellant was challaned and was charged by the learned trial Court under Sections 363, 366 and 376, IPC. Appellant pleaded not guilty to the charge and claimed to be tried.

In a bid to bring home guilt of the appellant, prosecution examined the complainant-Hakam Ali as PW5, the prosecutrix as PW4, Dr. Archana Soni as PW3, Dr. R.S. Bhoria as PW11 and Assistant Sub-Inspector Jagdish Chander as PW12 in addition to formal witnesses, namely, Constable Krishan Kumar as PW1, Constable Veer Shakti Singh as PW2, Assistant Sub-Inspector Nand Kishore as PW6, Head Constable Ishwar Singh as PW7, Sub-Inspector Shamsher Singh as PW8, Constable Subhash Chander as PW9, Head Constable Balbir Singh as PW10 and Rajnish Kumar Sharma, Judicial Magistrate Ist Class as PW13.

All the inculpating circumstances brought on record in the evidence of the prosecution were put to the appellant in his statement u/s 313 of the Criminal Procedure Code, 1973 (for short, ''Cr.P.C.''). He denied all the circumstances and reiterated his plea of innocence and false implication besides adding that parents of the prosecutrix wanted to marry her with him and she had herself allured him outside his house to join her. He, however, did not lead any evidence in his defence.

Learned trial Court, on hearing the submissions made at the bar and on appraisal of the evidence available on record, came to the conclusion that the prosecution was able to fix guilt of the appellant beyond reasonable doubt and, accordingly, convicted and sentenced him as herein-before stated.

I have heard learned counsel for the appellant and learned Deputy Advocate General for the respondent-State.

Learned counsel for the appellant has referred to the deposition of the prosecutrix (PW4) to show that she has admitted in her cross-examination that from the spot of occurrence, she was taken to Panipat by bus and was kept there for 8-9 days. She met a number of people on way to Panipat and also while staying at Panipat but did not raise an alarm nor did she disclose the occurrence to anybody. It has also been pointed out that the prosecutrix has admitted that door of the room wherein she was kept at Panipat remained open and she used to go out to take meals along with the appellant and would also call on the residents in the neighbourhood. These circumstances, according to learned counsel for the appellant, are sufficient to show that the prosecutrix was a consenting party and, therefore, no offence punishable under Sections 363, 366 and 376, IPC, is made out. The learned counsel also submits that as per radio-logical examination of the prosecutrix, her age was found to be between 17-19 years and that being so, findings of the learned trial Court that the prosecutrix was below 18 years of age is unsustainable in law.

On the contrary, on behalf of the respondent-State, the impugned judgment/order are defended and it is argued that in the evidence of the prosecutrix (PW4) and her father Hakam Ali (PW5), it has been sufficiently proved that the prosecutrix, a girl below 16 years of age, was removed by the appellant from lawful guardianship of her father Hakam Ali with an intention to subject her to sexual intercourse; and she was, in fact, subjected to coitus against her wish and consent. The learned State Counsel also refers to the evidence of Dr. Archana Soni (PW3) and Dr. R.S. Bhoria (PW11) to demonstrate that the prosecutrix was subjected to sexual intercourse and there was nothing to suggest that the appellant was incapable of performing the sex act. According to learned State Counsel, finding of the learned trial Court regarding age of the prosecutrix being below 18 years is based on the evidence available on record in view of the ages of other children of Hakam Ali (PW5) and, as such, this finding does not call for any interference.

Nothing more has been urged on either side.

As aforesaid, law was set in motion by Hakam Ali (PW5) by making a statement (Exhibit PE) before the Investigating Officer. According to his statement, the prosecutrix was taken away by the appellant from the house of the complainant on the plea that she was called by her mother in the fields. This, however, was found to be incorrect. Said Hakam Ali, while appearing as PW5, has reiterated on oath what was stated by him in his statement (Exhibit PE). Incidentally, he has not been confronted with a suggestion, on behalf of the defence, that in his statement (Exhibit PE) that the appellant had taken the prosecutrix away from his home on the pretext that she was called by her mother, was wrong or incorrect. The prosecutrix while appearing as PW4 has taken the story further by reiterating on oath what was stated by her in her statement (Exhibit PL) recorded u/s 164, Cr.P.C. She has also been able to pass the test of cross-examination successfully. In fact, she is confronted with a suggestion on behalf of the defence that she was sent along with the appellant by Hakam Ali (PW5), father of the prosecutrix. By making such a suggestion to the prosecutrix, the appellant has, by necessary implication, admitted that she was taken away by him from house of the complainant.

Further the factum of the prosecutrix having been subjected to sexual intercourse has not been disputed by the appellant by cross-examining the prosecutrix (PW4). Even otherwise, Dr. Archana Soni (PW3) has proved on record carbon copy of medico-legal report (Exhibit PC) pertaining to the prosecutrix, and has stated in unambiguous terms that the prosecutrix was subjected to sexual intercourse. Though, finding of this witness with regard to prosecutrix having been subjected to sexual intercourse has not been challenged in cross-examination but she has exhibited her inability to say if it was a case of consent or not.

As aforesaid, Dr. R.S. Bhoria (PW11) has proved carbon copy of medico-legal report (Exhibit PH) pertaining to the appellant and has stated on oath that there was nothing to suggest that the appellant was incapable of doing sexual intercourse.

In view of the above, the only question that remains to be answered is the age of the prosecutrix because if her age is found to be below 16 years, the question of consent pales into insignificance while if her age is found to be above 16 years then the circumstances enumerated by learned counsel for the appellant deserve to be taken note of and analysed minutely to find out whether the prosecutrix was a consenting party.

Learned trial Court while assessing age of the prosecutrix has referred to a report of ossification test as also the evidence of Hakam Ali (PW5) and the prosecutrix (PW4) and has reached the conclusion that on the day of occurrence, the prosecutrix was below 18 years of age. However, a perusal of the record would show that in statement (Exhibit PE), age of the prosecutrix is given 15-16 years. Similarly, the prosecutrix while making her statement (Exhibit PL) u/s 164, Cr.P.C., disclosed her age as 15-16 years. Prosecutrix appeared as PW4 and disclosed her age as 14-15 years. However, when being cross-examined, on behalf of the defence, she stated that she is one of eight children of her parents. Youngest is her sister named Samuru, aged about 7-8 years, and eldest of her sisters is Risho, who is married and has children. She has also stated that her brother, who is elder to her but younger to her elder sister, is named Kala alias Jafar, and is 18 years old. Next in line is Murshida aged about 17 years and she is younger to said Murshida. According to her, younger to her is her brother Tahir, who is aged 10-12 years and the next brother is Ikram, who is aged about 8-9 years. Even PW5 Hakam Ali has stated in his cross-examination that his daughter Murshida is elder to the prosecutrix and is aged about 18 years while his son Tahil, who is younger to the prosecutrix, is aged about 12 years. The defence after having elicited this information from the two witnesses felt satisfied and did not insist upon production of some documentary evidence in the form of school/birth certificate of the prosecutrix or an entry in the register of village chowkidar. From the ages of the children of complainant Hakam Ali as given by him while appearing as PW5 and by the prosecutrix while appearing as PW4, age of the prosecutrix comes out to be somewhere around 15-16 years. Then, PW5-Hakam Ali, has denied a suggestion put by defence that the prosecutrix was 20 years old at the time of occurrence while the defence has chosen unnecessary and wasteful to confront the prosecutrix (PW4) with a suggestion that she was more than 16 years of age or that her age, as given by her, was incorrect. In this view of the situation, consent of the prosecutrix to accompany the appellant and to submit for the sex act is rendered inconsequential.

Be that as it may, it has come in the statement of the prosecutrix (Exhibit PL) that when she refused to submit before the appellant for the sex act, she was threatened with a knife and the threat was repeated when she was made to board a bus for Panipat. Incidentally, when the prosecutrix was being cross-examined on behalf of the defence, she was not confronted with a suggestion that the circumstances mentioned in the statement (Exhibit PL) were not correct or that no such threat was given by the appellant to her. That being so, even if the prosecutrix is taken to have reached the age of consent, her consent for accompanying the appellant and submission for the sex act cannot be said to be voluntary and is hit by Section 90, IPC.

In the consequence, the appeal fails and is, hereby, dismissed. Bail bonds of the appellant are cancelled. The appellant is directed to surrender before the jail authorities within fifteen days from today failing which the learned Chief Judicial Magistrate, Karnal, shall issue warrants to cause his arrest and commit him to custody so as to serve the remainder sentence awarded to him by the learned trial Court.